Your sense is not so common

Once again I allowed you, dear reader, to dictate what the subject matter of today’s blog post should be. I gave you many options and this week you picked that I should write about the absurdity of the law.

This post could be very, very long.

I spent a good deal of time thinking on this topic. And what it boils down to is this – common sense is not a constant. Our ideas and ideals are ever evolving and what we view as being so basic I mean why do I even have to explain it to you today, was very likely unheard of/blasphemy/you are a nutjob a century ago.

The law is old – it’s as old as humanity (which started with Christ or a few million years ago, depending on who your preacher is) and it consisted of rules that made sure people didn’t take other people’s stuff or murder them or defoul their property (including their women.) Simple, easy. There were no other real rules to make – no regulation of waterways or highways, no mandatory days of school or days of the week you could water your lawn. No one had seen smog or thought “man, that fish looks too small to eat but I’m gonna keep it anyway” because what would someone do with a fish they couldn’t eat? No one had to make a law against keeping a too small fish.

The sense that was common when the Magna Carta was written in 1215 is not the same sense that was common when the Constitution was written in 1789. It is not the same as 1942 or 1972 or 1992. And it certainly is not the same as today. When we expect that the law with comport with what we believe to be common notions or right and wrong, good and bad – or even logic – that’s when we are usually wrong.

I remember before I went to law school I would think about how the law should function. Then I went to law school and I just remember always thinking “This doesn’t make any sense.” It didn’t to me, it still doesn’t. Most of it seems made by people who have not ever lived a real life or who think that for every new feeling of ‘common sense’ a new law must be created to make the law comport with current norms of common sense.

Are you sick of the phrase “common sense” yet? I know I am. But we hear it all the time ‘common sense reform” “isn’t law and order just common sense” and “it makes sense to ban assault weapons.” So much sense that is so common yet we end up with absurdity in the law. It would have to be absurd to keep up with what we deem to be important at this moment, what we consider the logical extensions of our current mores. Right now, we value safety so we create laws that gives us the idea of safety knowing full well that we can’t actually regulate safety into existence. We created the Patriot Act, and yet we feel we are now more vulnerable to terrorism than we were before the Patriot Act. How can this be? If it was based on common sense – shouldn’t it give us what we want? And if it isn’t, why do we continue to demand absurd laws that may make sense today, but certainly won’t in five years or so.

The law is absurd because the human desire for order is absurd, our ability to handle chaos is minimal and the more rules we have, the more in control we feel. How does that make any sense?

But this is considered common sense.

There was a point in history when women were not viewed as full human beings, there was a theory that their love of their offspring was simply intuitive, like a cat taking care of her kittens. But we now know this theory is false. If women were like cats, we’d make sure our kids could feed themselves, not get hit by cars, and function in the world and then let them go. But we are vastly more complex than cats and our love for our children in today’s society means we infantalize them for as long as possible. It is exactly this sort of societal change that creates absurd guidelines like the ones that don’t allow your children to play outside unsupervised IN THE BACKYARD before the age of 7. Now, I will admit this isn’t a law. But if we continue along this path, it very well could be. And, we also know that people have been prosecuted for allowing children to play unattended.

We would never have imagined these laws even in the 1970’s when mom would stay home (hence having more time to dote on her kid, but for some reason, didn’t) and dad would go to work and come home and ignore us. Outside was where we were told to go because mom was sick to death of us in her face. The law would not have prohibited mom having her free time to watch her soaps. It was common sense.

It was also common sense that you could have a 6 pack and drive home.

Then we decided to get jobs and then we felt bad about not being home with our kids. Some people decided it made sense to make sure that kids were protected since parents couldn’t be with them all the time, so they made more laws to protect kids. (WHAT ABOUT THE CHILDREN!*) (Check out the truancy laws in your state if you need an example of absurdity.) These laws made sense to someone. I guess.

We’ve strayed from what the law was originally designed to do – make sure no one took our stuff and killed us – and has become something else all together. And that, my friends, is also absurd.